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Accused has a right to review witnesses before framing of assign in censure case

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 06.06.2016

CORAM : THE HONOURABLE DR.JUSTICE P.DEVADASS

C.R.L.RC(MD) No.401 of 2015 and M.P.(MD) No.1 of 2015

R.Rengarajan … Petitioners / Petitioner

-vs-

A.Vasudevan … Respondent / Respondent

PRAYER: Criminal Revision Petition is filed, underneath Section 397 r/w 401
Cr.P.C., to call for a annals and to set aside a Order antiquated 16.07.2015
in Cr.M.P.No.5285 of 2014 in C.C.No.139 of 2011, on a record of a Judicial
Magistrate Court No.II, Srivilliputhur, Virudunagar District and remand the
matter behind to a pronounced Court.

For Petitioner : Mr.T.Lajapathi Roy

For Respondent : Mr.P.Subbaraj

:O R D E R

This rider arises out of exclusion of a liberate petition in Cr.M.P.No.5285 of 2014 in C.C.No.139 of 2011, on a record of a schooled Judicial Magistrate No.II, Srivilli puthur.

2. The censure in C.C.No.139 of 2011 is presented under Section 200 Cr.P.C. The schooled Magistrate conducted enquiry under Section 202 Cr.P.C. Taken cognizance. Issued summons under Section 204 Cr.P.C., to a accused. Copies under Section 208 Cr.P.C., has been supplied.

3. At this juncture, a indicted filed Cr.M.P.No.5285 of 2014, under Section 245(2) Cr.P.C., to liberate him from a case.

4. The schooled Magistrate, deliberation a averments in a liberate petition and averments in a counter, liberated a liberate petition. That is how, this rider by a accused.

5. According to a schooled warn for a petitioner, there is no belligerent to ensue as opposite a accused, he should have been discharged. However, he has not been discharged. Thus, a impugned sequence is unsustainable in law.

6. On a other hand, a schooled warn for a respondent / complainant would contend that there is prima facie box opposite a accused. The Trial Court has righteously liberated his liberate petition.

7. we have anxiously deliberate a opposition submissions, perused a impugned sequence and also a materials on record.

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8. Under the Code of Criminal Procedure, there are dual vital classifications of rapist cases, namely, ?police case? and ?private case?. Among them, there are serve classifications, namely, warrant-case, summons-case, summary-trial box and sessions case. All these form of cases competence arise out of military box and also private case.

9. Sofar as a military box is concerned, it is instituted on a military news under Section 173 Cr.P.C. After supply of copies, under Section 207 Cr.P.C., indicted can find liberate from a case. That will be dealt with under Sections 239, 240 Cr.P.C. There is no liberate in summons-cases. Likewise, in a private-case, there is a sustenance for liberate of a indicted from a case.

10. However, there is vital eminence as regards liberate of an indicted from a warrant-case instituted on a military news and a warrant-case instituted on a private censure filed under Section 200 Cr.P.C. In a warrant-case instituted on military complaint, a Magistrate has to cruise a Final Report, matter of witnesses available under Section 161 Cr.P.C., documents, if he feels required he can inspect a indicted also and if he finds a charges (allegations) are groundless, he can liberate a indicted under Section 239 Cr.P.C., or support charges under Section 240 Cr.P.C. However, in a box instituted on a private complaint, a procession for assign or liberate is totally opposite from a military case.

11. A tighten reading of Section 245(2) Cr.P.C., would uncover that in a warrant- box instituted on a private complaint, after recording evidence, liberate petition can be entertained. That is how, it is settled that in a military box there will be usually one cross-examination. However, in a private censure case, there will be dual cross-examinations. In a military case, hearing commences on arising copies under Section 207 Cr.P.C. But, in a private censure case, hearing will embark usually after framing charges under Section 246 Cr.P.C., that will be usually after recording justification under Section 244 Cr.P.C. While recording rough justification under Section 244 Cr.P.C., a indicted can review a witnesses afterwards and there or he competence defer a cranky to be finished after framing of a charges. After framing of charges, again a indicted can review a witnesses. That is how, in a private censure case, a indicted will have dual cross-examinations. But, it is impending to note that during this theatre a quantum of justification adduced is not a choice of a accused, it is a choice of a complainant, that would be sufficient to support charges in a opinion of a complainant. Section 245(1) Cr.P.C., starts with a difference that ?if on such consideration?. It shows that a Magistrate should cruise a justification adduced under Section 244 Cr.P.C. and if he sees that no box has been done out opposite a accused, that is, if unrebutted it would not aver a conviction, there is prima facie case, afterwards he will liberate a indicted from a box under Section 245(1) Cr.P.C. Otherwise, he will support a assign under Section 246(1) Cr.P.C.

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12. It is impending to note that under Section 245(2) Cr.P.C., during any prior theatre of a case, if a assign is groundless, he can liberate a accused. So also during any prior theatre of a case, if there is a belligerent for supposed that a indicted has committed an offence, a Magistrate can support charge. But, it is always advisable to ensue under Section 245(1) or 246(1) Cr.P.C., after Section 244 Cr.P.C., justification is tendered. It will capacitate a Court to cruise both side cases and describe justice.

13. In rapist trials, advantage of doubt always goes in foster of a accused. However, during a theatre of framing charges, if a materials constructed raises a doubt, it is adequate to support charges. At this stage, a Court contingency see either a indicted competence have committed a corruption and not either he has committed a offence. So, during this theatre a advantage of doubt goes in foster of a prosecution.

14. Now, gripping a above beliefs in a mind, let us ensue this case.

15. This box is instituted on a private censure for offences underneath Sections 406 and 409 I.P.C. They are warrant-offences. As settled above, as per Section 245(2) Cr.P.C., justification under Section 244Cr.P.C., has to be adduced. That has to be deliberate by a Court either there is belligerent to ensue further. But, in this case, but examining a witnesses, quite formed on a allegations in a liberate petition and in a opposite filed by a complainant, a Trial Court has liberated a liberate petition filed under Section 245(2)Cr.P.C. The procession adopted by a schooled Magistrate is not in suitability with law. While dismissing a liberate petition, a Trial Court has not followed a distinct procedures prescribed in Sections 244, 245 Cr.P.C.

16. It is systematic as under:

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(i) The impugned order, antiquated 16.07.2015, upheld in Cr.M.P.No.5285 of 2014 in C.C.No.139 of 2011, by a schooled Judicial Magistrate No.II, Srivilliputhur, Virudunagar District, is set aside.

(ii) In a seductiveness of justice, a whole box in C.C.No.139 of 2011, together with Cr.M.P.No.5285 of 2014 is eliminated to a Court of a schooled Judicial Magistrate No.I, Srivilliputtur.

(iii) The schooled Judicial Magistrate No.I, Srivilliputtur, will dispose of a liberate petition in suitability with law, following a procedures mandated in Section 245 Cr.P.C., after giving event to both sides.

17. Accordingly, this rapist rider is likely of. Consequently, connected diverse petition is closed.

To

1.The Chief Judicial Magistrate, Srivilliputhur.
2.The Judicial Magistrate No.I, Srivilliputhur, Virudunagar District.
3.The Judicial Magistrate No.II, Srivilliputhur, Virudunagar District

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